French KlearGear Rep Fires Off Email Defending Company's Actions, Claims Suit Against It Wasn't Served Properly

from the offers-nothing,-far-too-late dept

Well, this is interesting. After months of dead air, the person behind the company behind the thin-skinned thug d/b/a KlearGear has finally issued a statement on its decision to charge a couple $3,500 for posting a negative review, along with ruining their credit. In an email sent to Ars Technica (and other sites, apparently), Vic Mathieu of the France-located Descoteaux Boutiques claims this company, the purported owner of KlearGear.com was never "served properly under the Hague Convention," and will be seeking to vacate the recent default judgment against it secured by Public Citizen and its clients, John and Jen Palmer.

With the company's twisted history out of the way, Mathieu goes on to claim that the Palmers did agree to the Non-Disparagement Clause (and its $3,500 fine) when they purchased items (that they never received) back in 2008.

In written communication to Mr. Palmer on 4 June 2012, we informed him that the disparagement clause in our conditions of sale was present the 22 December 2008 when he has certified to us that he has read, understood and agreed to it:

The structure of our sales contract, referenced in your order check-out screens which we have on file from December 22, 2008, had three forks (today there are two): http://www.kleargear.com/help.html, http://www.kleargear.com/termsofuse.html and http://www.kleargear.com/tsaddendums.html.

The problem with this assertion is that it simply isn't true. The Internet Archive has no record of the TSA Addendums URL. It could be that IA was blocked from archiving it or that it was active for such a short period that it was never crawled, but a look at the history of the site map shows that page didn't exist in 2007 or 2009 -- or any other year.

Here's every KlearGear URL archived by IA. It's not in there either. (Yes, I scrolled through 5,000+ URLs.) It could be that the Addendums were served via a Java popup or something similar but Mathieu clearly specifies a URL. He also claims to have "record" of this being agreed to by the Palmers, but apparently "forgot" to attach that piece of evidence.

Mathieu is claiming the Palmers agreed to a non-existent clause on a non-existent page in 2008. The clause still wasn't present when Jen Palmer wrote her negative review in 2009. The Palmers heard nothing about it until 2012 -- not coincidentally the year the Non-Disparagement clause debuted. Mathieu declaring this self-serving email to be KlearGear's "first and only statement" ensures he can never be called out for lying.

But Mathieu's not done making things up.

Kleargear's Non-Disparagement Clause was never deleted from our online store in November last year, as it has been wrongly stated; it was simply relocated with other content on the new URLs (the aforementioned clause can now be found at http://www.kleargear.com/termsofuse1.html).

The new terms of use page ("termsofuse1") first appeared in February 2014 (reinstating the temporarily vanished Non-Disparagement Clause), as can be verified at the Internet Archive. On October 26th, the original Terms of Sales page (along with the offending clause) was still live. By November 16th (a few days after the story began spreading), the page was automatically redirecting traffic to Kleargear's "Best Sellers" page. It may not have been deleted, but it certainly wasn't accessible. It was buried and it wasn't accessible for nearly three months.

Mathieu wraps up the letter by playing the most pathetic of victim cards.

Ironically, if Mr. Palmer had simply approach Kleargear first last fall and requested a stay to finance their new furnace -- we would have worked with him. We are human beings. Instead, he has chosen a public forum.

Really? Because there's plenty of evidence out there that Kleargear (and its multiple associated companies) are completely unapproachable. Not only did the Palmers try to contact the company, but so did several others.

Wanting an explanation, Jen says she tried to call the company but could never reach anyone…

When we tried calling Kleargear.com we were unsuccessful in getting through to anybody. By email, a person who did not identify him or herself defended the $3500 charge referring again to Kleargear.com's terms of sale.

I tried to get a comment from KlearGear. I tweeted their Twitter account. I left a message on their Facebook page. I repeatedly called "Rob Key," their "Media Relations" person, at the number they provided; it was constantly busy over two days. I called the main number on their website; the recording always says that a customer representative is unavailable on this time and to check the website.

Neither KlearGear nor Descoteaux Boutiques responded to repeated requests for comment via phone and e-mail. A call to the Paris number listed on the e-mail for Descoteaux Boutiques resulted in an automated message in Canadian-accented French and then English saying to call back during European business hours, which Ars has already done more than once.

The BBB contacted the company at the Michigan mail drop address instructing the company to immediately remove the incorrect BBB logo and reference from their site.

While the company did not respond to the BBB, all references to the BBB has been removed from the company's website.

Mathieu also claims his company was completely blindsided by news of the lawsuit's default judgment, claiming Descoteaux Boutiques wasn't notified until April 22nd of this year. As Scott Michelman of Public Citizen points out in his response (below), that's rather hard to believe. The news was everywhere. And there's plenty of evidence that indicates someone involved with KlearGear knew things were swiftly moving from bad to worse to actionable.

Someone answered Matt Gephardt's email during his investigation and defended the atrocious policy. Someone running the KlearGear site scrubbed the TRUSTe certification KlearGear never earned off the site December 5th, roughly two weeks after it was first noted and called out. And, as the BBB noted, someone removed the false "A+" rating as well. Then there's the vanishing Non-Disparagement Clause as well, which was buried behind a redirect to the "Best Sellers" page.

Scott Michelman from Public Citizen has issued a response to Mathieu's BS letter:

On Monday, several news outlets received a statement from the email address vic.mathieu [at] kleargear [dot] com making assertions regarding the lawsuit Palmer v. KlearGear.com, pending in federal district court in Utah.

The email’s accusation that, as the Palmers’ attorney, I misled the court about KlearGear’s whereabouts or about any aspect of service, is entirely false. In accordance with applicable federal and state rules of procedure, we served the Palmers’ complaint on KlearGear at the Grandville, Michigan, address listed on its website, as documented in papers filed with the court and as confirmed by the court’s own judgment.

The email’s statement that KlearGear lacked notice of the case is difficult to believe, given the widespread national and international press coverage over six months and the fact that news reports from the fall of 2013 contain statements from KlearGear itself regarding the Palmers. Additionally, the email acknowledges that the author was aware of the litigation a month ago. Yet the company allowed the case to proceed to judgment, making no effort during that time to move the court for relief from default.

Most important, Monday’s email does not answer the claims at the heart of this case: that KlearGear used one-sided contractual fine print to try to bully unsatisfied consumers into silence, abused the credit reporting system when the Palmers would not pay KlearGear’s extortionate demand and then defamed the Palmers in the press.

If KlearGear decides to appear in court at long last, we welcome the opportunity to demonstrate that the Palmers are entitled to relief, either because of the company’s default or on the merits.

Surfacing months after the fact to claim everyone else is wrong doesn't make Mathieu or his company(ies) look any more trustworthy. In fact, his email/statement makes KlearGear look even worse. KlearGear's resemblance to a barely-functioning subsidiary owned by an absentee landlord is now confirmed. (More evidence of KlearGear's unwillingness/inability to fill orders can be found at its no-longer-active FAQ/forum, where the most-viewed posts all deal with customer service problems.)

As Mathieu states in his email, people who don't like KlearGear's Terms of Sales can always shop elsewhere, which has always been true. (And I can't think of a single reason why anyone would shop there going forward…) But that sort of statement means nothing when the company blindsides people with Terms of Sales that weren't in place when the order was in the process of being ignored by KlearGear.

Reader Comments

I doubt Vic Mathieu really exists. There is so much stereotypcial Frenchiness in the response that someone just has to be overdoing it in the 'make them believe we're French' department and thougt of this überass.

Re:

There's so much fake 'french-ness' i was waiting for that response to say they couldn't respond quicker to customers because - ho he ho he ho and then say they were too busy bike riding with onions round their necks, circling the eiffel tower with a striped jersey on, looking for wine for their kids.

Finally, you agree that context is important. And context is important when poster “David Markland” writes, under a thread entitled “Re: REALLY?”:

Indeed. My error.

You agree that poster “David Markland” is not, in that context, making any retraction in the thread entitled “The disparagement clause WAS on KlearGears site”? It would be unreasonable to read his confession of error out of context, and into this thread?

Re: REALLY?

Re: REALLY?

Actually, I do read the conditions for software and web services. Admittedly, more often than not I stop before I'm halfway through because it's sufficient to decide "I don't need that". And it's actually only rarely because of a bonafide scam where you agree in the fine print to buy some pretty useless service for at least two years for just-enough-to-evade-criminal-court.

Terms of Use 1 ?

So, according to KlearGear websites are free to move pages around, unlink them from their home / order page, and still have the conditions applied on a sale ? So, in that case which terms of use will apply ? termsofuse.html or termsofuse1.html ? or a combination of both ?

These guys are total nuts. Amazon has waived off their shipping charges so many times on my orders on slightest of complaints, that I feel bad writing to them about it, its amazing that anyone should ever feel inclined to shop with KlearGear, thankfully they are working hard to loose their business.

So...quick question

Isn't a review an expression of opinion, one that is then covered by the 1st Amendment in the US? I may be wrong, but I was under the impression that you cannot sign away your rights, no matter what the fine print says, so this clause should technically be unenforceable.

What would have happened if KlearGear DID show up in court? Is there a possibility they might have won?

Astonishingly, KlearGear has put its non-disparagement clause -- which threatens users of its website with a $3500 penalty for speaking ill of the company -- back in its terms of use. This development lends additional urgency to the legislative efforts to protect consumers' right to speak freely: as Law360 reports (subscription required), the California Assembly and the U.S. House of Representatives are considering bills to protect consumers from non-disparagement clauses.

(Internal hyperlink omitted.)

It's probably safe to say that neither the California Assembly nor the U.S. House of Representatives would be considering new legislation if current law clearly found non-disparagement clauses to be facially void under all circumstances.

Re: Re: So...quick question

There are all sorts of redundant laws on the books. They get passed so legislators can appear to be 'doing something' to solve a problem, and it's cheaper than actually enforcing applicable laws already on the books.

Re: So...quick question

I may be wrong, but I was under the impression that you cannot sign away your rights, no matter what the fine print says,

Those rights apply to interactions with the government. The government can not take away those rights.

You can however sign away your rights to a company. If you work for a company larger than a few dozen people (and probably even for most of those), you've almost certainly signed a Non-Disclosure Agreement that says you have agreed not to talk about anything the company considers a trade secret or any privileged information. If you violate that, you've also probably agreed to be liable for civil damages as a result of that disclosure.

I am not a lawyer - assuming that clickwrap/shrinkwrap EULA and terms and conditions and whatever else are otherwise legally sound and binding - but there's no legal reason that a company couldn't try to enforce such terms.

Re: Re: So...quick question

The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.

Now, Justice Scalia has been known to express an opinion that the court may possibly have erred in Sullivan's constitutionalization of libel law. He asks why that law should not be left to the democratic institutions of the various states.

… Non-Disclosure Agreement …

Non-disclosure is not non-disparagement.

The public policies which underlay use of the state's power to protect trade secrets are not identical to the public policies that the California legislature may seek to further in Assembly Bill 2365 (introduced Feb 21, 2014 in 2013-2014 regular session).

Re: Re: So...quick question

"You can however sign away your rights to a company."

To an extent, yes, but there is a limit to how far this can go. A contract that specifies "unconscionable" or illegal terms is an invalid contract no matter who signs it. The real question is how many rights can you sign away before it's unconscionable?

I doubt whether or not the clause was put there in 2008 or indeed in 2008 BC would make much difference.

I know dozens of sites all carrying this story and how Kleargear/Descoteaux Boutiques are basically scams that will try to take payments, fail to deliver and THEN have the audacity to try to ruin the credit rating of anyone that complains.Hell, I've even made a few review websites aware of this Vic Mathieu and his criminal behaviour.

Free to shop elsewhere

As Mathieu states in his email, people who don't like KlearGear's Terms of Sales can always shop elsewhere, which has always been true. (And I can't think of a single reason why anyone would shop there going forward…) But that sort of statement means nothing when the company blindsides people with Terms of Sales that weren't in place when the order was in the process of being ignored by KlearGear.

Am I the only one who read that and wondered why KlearGear's terms of use did not also include language agreeing to use them as the sole vendor for any items advertised through KlearGear, forsaking all other vendors even if someone else offers the item under better terms? After all, if we're going for over the top abusive language, why not have a clause that "By buying from us once, you agree to buy only from us forever more."?

Comtempt of Court?

By ignoring/disparaging the court order are they now in contempt of court? Maybe the judge can order the company put in 'jail' by seizing/suspending its' domain. Being unable to to business would certainly get their attention.

And it seems that it does not exist either in France...

Every company in France, especially if you want to make trade and to have the legal status of an SARL, must be registered in the RCS ("Registre du Commerce et des Sociétés").This is a public directory, and if you try to find Descoteaux in online directories (for example - commercial links - on societe.com or infogreffe.com), you will have zero answers. Nil. Nada.There is a possibility that the informations are not yet transcribed (the transcription is a work of the "greffe du tribunal de commerce"), but usually this delay is not longer than 10/15 working days... That means that descoteaux boutiques, if it exists, has been created only a few days ago. Strange, isn't it ?

Re: And it seems that it does not exist either in France...

KlearGear's actions speak volumes

Literally every single thing that KlearGear has done and said around this issue has screamed "this is a scam operation -- avoid at all costs".

I find it a little funny that if KlearGear had just let the entire matter drop, they would be much, much better off than they are now. Now, a whole lot of people will be actively telling others not to use KlearGear whenever their name comes up.

Frankly, I think the 'contract' is void

Customer entered into a contract to buy items (with or without disparagement clause) from Seller. From what we can determine, Seller did not accept offer to buy since they 1) didn't take the money, 2) did not ship product. So there's no actual contract in force.

And KlearGear is (in my opinion) a doofus. And I mean that totally non-disparagingly.

Go after them again?

Near the end of Frenchies letter he mentions that they may send the Palmers $3,500 "debt" to collections again, but if they've already sold it once they have no right to do so again. The previous collection agency paid Kleargear, or whoever they may be, therefore Kleargear no longer owns the debt.

Not served

"What? Not served properly? But we sent it to 12310 Nort East Greeley Parkway in Stanley, North Dakota. That's your place of business, isn't it?

"It's not? Oh. Sorry. Must have been a typo. I'll be sure to properly chastise my secretary. Apologies for the error.

"Well, I can see that, but why in the world should it affect the suit? I mean, accidents like this happen all the time and the courts work around it. Look what happened when you sent my client's service to 410023 Whale St in Point Barrow, Alaska. I seem to remember that the court accepted your argument of accidental failure without a lot of hassle. Why they even ruled in your favor when you had no idea who it was you planned to sue..."

Point being….

World court law cannot be argued in a domestic case entirely within the U.S. (or any country where the case is entirely within the countries' jurisdictional boundaries. The only exceptions are when the country in question is presumed not to have a government, or severe human rights cases. Had KlearGear listing its offices outside of U.S. borders, Vic might have had a thread of an argument. The papers service argument is no different than any process service dodging that happens every day in the United States. Hey, Vic can CLAIM lack of knowledge, lack of service, but judges have been wise to THAT tactic, like, FOREVER. No the argument he is making is first year law school stuff that wouldn't geed a passing grade. My instinct says Vic knows this too. When he suggests the monetary claim may be filed again, that clinches it. He is simply, and with full awareness, thumbing his nose at the proceedings regarding KlearGear. "Nyah, nyah, nyah, nyah! Try and get me! You can't get me, I'm too high in the tree! Here! (dumps coffee can) Eat dirt!" Sorry for the stage play, but this is exactly what this scofflaw is doing, IMO.